ADR - Alternative Dispute Resolution

ADR - Alternative Dispute Resolution

1. INTRODUCTION

ADR refers to any means of settling dispute outside of the courtroom. It involve a third-party, who helps them in settling the disputes. ADR typically includes early neutral arbitration, mediation, conciliation, negotiations. ADR is becoming an important part of legal system of every country in the world.

2. DEFINITION OF ADR

Various method to resolve disputes without normal trial process. (Without litigation)

3. KINDS OF ADR

(A)Arbitration, 

(B)Mediation, 

(C)Conciliation, 

(D)Negotiations. 

(A) Arbitration

Arbitration is a form of ADR. In this process, Parties with disagreement transfer their dispute to third-party, By whose decisions they agreed to be bound.third party reviews the evidence in the case and imposes a decision that is legally binding for both sides and enforceable.

The divisions made by an arbitrator is enforceable similar to a judgment of court. Arbitration is a formal process and can follow similar procedures to court proceedings where witness can be called and evidence can be presented to argue the parties respective cases. Arbitration can be either voluntary or mandatory.

(B) Mediation

Mediation is an form of  ADR. In this process where a neutral 3rd party i.e mediator, tries to settled the dispute with the consent of both parties. A mediator assists the parties to reach a compromise. The parties can even go for litigation if they are not satisfied with the mediation process. 

It must be observed that the main aim of mediation process is to build relationships, and not to make a decision. 

(C) Conciliation

Conciliation is an alternative Dispute Resolution process whereby the parties to a dispute use a conciliator, who meets with the parties separately in order to resolve their difference. 

(D) Negotiation

According to this process, two people having a dispute can negotiate and come to a solution themselves. It is completely private and it is cheap and fast.

(E) Lol Adalat

Lok Adalat is called ‘People’s Court’ presided over by a sitting or retired judicial officer, social activists, or members of the Legal profession as the chairman.

National Legal Service Authority (NALSA) along with other Legal Services Institutions conducts Lok Adalat on regular intervals for exercising such jurisdiction. 

These Parties are in direct interaction with the judge, which is not possible in regular courts.

Any case pending in regular court or any dispute which has not been brought before any court of  law can be referred to Lok Adalat. There is no court fee and no rigid procedural requirement (i.e., no need to follow the process given by the Civil Procedure Code or Evidence Act),

4. Advantages -  Benefits of ADR - Factors favouring Adopting ADR

(A) Cost saving/ Inexpensive

Judicial procedure for resolving disputes include court fees, advocates fee, and other extra amount. ADR does not include any experts fees or court fees.

(B) speedy & time saving

trials are lengthy; whereas alternative dispute resolution techniques help to resolve the dispute in a very minimum time.

(C) Avoids a jury

alternative dispute resolution methods generally involves the use of one or more knowledgeable professionals to resolve the dispute.

(D) Privacy/Confidentiality

alternative dispute resolution is a private process; whereas, litigation and court records are open to the public. The result can be kept confidential in ADR.

(E) Co-operation

ADR allowed the party to work together with the help of third party appointed who is independent and neutral.

(F) Direct communication between disputants 

ADR includes direct communication between disputants so they can easily Convey their statements to one another.

(G) Accepted by court 

Sometimes court give order or appointed local commission for the decisions of people. The decision of local person commission of court is final and esthetic. These decisions are accepted by the courts.

(H) Acceptance by parties 

Alternative Dispute Resolution is done only on base of parties. If both parties agree with ADR then it is possible in society 

(I) Less burden on Judicial System

If the people resolve their little disputes by ADR their will be less burden on judiciary.

(J) Flexible

The process is also very flexible, according to what suits the parties.

(K) Less stress

methods of alternative dispute resolution are often less stressful than expensive and lengthy litigation. If litigation occurs, you may have to take time off work to attend court, resulting in a blockage of work. Many people have a high degree of satisfaction with ADR.

(L) Reduce the formalities

It reduce the formalities, maintained in different stages of trails. (Or)

In the process of arbitration, the selection of the arbitrator is based on the choice of parties. The sitting during the time of the procedure is inform and is suitable for discussion. Unlike, the courtroom where a level of formality has to be maintained arbitration allows the friendly exchange of words without much mannerisms to be followed.

(M) High rate of success

The rate of success of ADR is significantly High, as the parties have been able to come to ward to sit together to talk together and finally resolving their disputes.

(N) Select your own arbitrator, mediator

The parties can often select their own arbitrator, mediator, conciliator to dissolve their disputes

(O) Great degree of party control

Parties who negotiate their own settlements have more control over the outcome of their dispute. Parties have an equal say in the process. There is no determination of fault, but rather, the parties reach a mutually agreeable resolution to their conflict.

(P) Used at any time, even when a case is pending

It can be used at any time, even when a case is pending before a court, through recourse to ADR as soon as dispute arises may confer maximum advantages on the parties.

(Q) provide a better solution

It can provide a better solution to dispute more expeditiously and at less cost than litigation. It helps in keeping the dispute a private matters and promoters creative and realistic business solutions, since the parties are in control of ADR proceedings. ADR procedure take only a day or a few days to arrive at a settlement.

Disadvantages

ØThere is no guarantee resolution

ØPossibilities of bias

ØDecisions are final (No apeal) 

ØDiscovery limited

ØInformal, more opportunity of abuse of power

ØLack of legal precedents

ADR in Pakistan

ADR is very useful in Pakistan. Basically in Pakistan this process is very common in rural life. This process is very old in Pakistan. It has so many benefits like inexpensive, speedy justice and no litigation.

Concept and Nature of ADR:

The Alternative Dispute Resolution System is simple and free from procedural technicalities: 

The methodology applied and techniques used in mechanism of ADR to settle the disputes 

between the parties do not follow the ticklish procedure adopted by the Judicial Courts. The 

mechanism of ADR system does not partake the course of judicial process. It is completely 

different and divorced from judicial technicalities. The ADR process is very simple, cheap, easy, 

speedy and result oriented in disposal of the cases. The ADR techniques are extra judicial in character.

Scope of ADR

The mechanism of ADR System and its techniques are extra-judicial remedy to resolve disputes outside the legal fora. These techniques can be used in all those cases, which are capable of being resolved, under law, by mutual agreement between the parties. The scope of ADR is wider and can cover the cases of civil nature, commercial, industrial and family disputes or any other cases of urgent nature. The ADR works across the full range of business disputes: banking; contract performance and interpretations, construction contracts, intellectual property rights, insurance coverage, conflicts in joint ventures, partnership differences, personal injury; product liability; professional liability, real estate and securities. The mechanism of ADR system may offer best solution in commercial disputes of an international character. 

The scope of an ADR System is not intended to supplant existing means of dispute resolution. It offers only alternative options to litigation. Every delegate stress for promotion of Mechanism of ADR system using its various forms conciliation, negotiations, mediation instead of initiating trials in the Court. The fast-emerging importance of ADR, its wider scope and commendable objectives emphasized for creation of more Lok Adalat including establishment of Fast Track Courts.

ADR- A Historical Synoptic View: 

 ADR is nothing new. This informal quasi judiciary system is as old civilization. Different forms of ADR have been in existence for thousands of years. The firm Arbitration (a form of ADR) Act was passed in 1698 under William III. This was an Act for rendering the award of arbitrators more effectual in all cases for the final determination of controversies referred to them by merchants and traders, or others. In 1854, Common Law Procedure Art expressly empowered courts to remit an award for reconsideration by the arbitrators. It aims empowered courts to stay (stop) an action in court if the parties had agreed m take the dispute to arbitration. Effectively, the Arbitration Act 1440 gifted a number of modem steps to be taken to agree disputes between the parties: the parties appoint arbitrators court may also appoint arbitrators if the parties fail to do so; decide the disputes informally, make an award, or settle the dispute by mediation, compromise or any other mama; court pass a decree in tams of the award  found the decision was made properly, and Arbitration Tribunal shall be competent m appoint expert or legal advisor to submit report to at an specified question or assessor for assisting it on technical matters. 

ADR vis a vis Jirga System:  

A jirga is a traditional assembly of leaders that supposed to make decisions by consensus. Its primary purpose has been to prevent tribal war. Most jirgas are conducted in Afghanistan but also among the Pashtun tribes in neighboring Pakistan, especially in Khyber Pakhtunkhwa (KPK). In 2017, the Pakistani government passed The Alternative Dispute Resolution Act, 2017 of Pakistan aiming to integrate jirgas into the formal justice system. In a January 2019 petition from National Commission on the Status of Women (NCSW), Supreme Court of Pakistan restrained jirgas up to permissible limits of the law to the extent of acting as arbitration, mediation, negotiation or reconciliation forums between parties involved in a civil dispute, amidst continued reports of widespread flouting of constitutional norms and human rights. Origin: Jirga might be referring to a large assembly of men forming a very broad circle, initially intended for laying siege around games or animals to be hunted for sport or for food. Probably, the Pashtun elders were also sitting initially in a circular formation when debating and hearing a given dispute.  Functioning methodology: The community council meaning is often found in circumstances involving a dispute between two individuals; a jirga may be part of the dispute resolution mechanism in such cases. The disputants would usually begin by finding a mediator, choosing someone such as a senior religious leader, a local notable, or a mediation specialist. In tribal Pashtun society, the Maliks serve as de facto arbiters in local conflicts, interlocutors in state policy-making, tax-collectors, heads of village and town councils and delegates to provincial and national jirgas as well as to Parliament. The mediator hears from the two sides and then forms a Jirga of community elders, taking care to include supporters of both sides. The jirga then considers the case and, after discussing the matter, comes to a decision about how to handle it, which the mediator then announces. The jirga's conclusion is binding. 

ADR vs Litigation:           

Going to court is usually an expensive and time-consuming prospect. Businesses, which are always looking for ways to more effectively manage costs and other resources, can conserve both by first considering other ways to resolve disputes. For example, before going to court over the failure of a third party to properly install equipment, a business might first consider entering into informal negotiations with the installer to reach a conclusion that is satisfactory to both sides. The Parties  Litigation involves the bringing of a legal claim in court by one party or a group of parties against another party or parties. Several actors are key to the litigation process; be sure you understand the role of litigants, attorneys, and others involved in the trial process. Pretrial Procedures Before the parties even get to trial, there is a great deal of preparation that must take place in order to have one's day in court. This section discusses the preparation of documents and exchange of information that must take place in order bring a lawsuit, and covers class-action lawsuits and the process of discovery, which is an investigative process through which the parties request and produce evidence. The discovery process is important, because it allows a party to ascertain their case's strong and weak points. Did you know that 54% of corporations were charged with a class-action lawsuit in 2014? According to the Manhattan Institute, "more than one in three such companies faced multiple lawsuits".  Trials and Appeals  When the parties reach the trial stage of a lawsuit, important decisions must be made about the selection of a jury, opening and closing statements, and the examination of witnesses.  Judicial Trends on ADR: Attitude of courts world over for success of an ADR system The attitude of courts world over is very much relevant for success of an ADR system.